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A recent decision from the High Court has raised concerns that the basic principles of freedom of information have been placed in jeopardy.

A core finding was that the Information Commissioner (the IC) made a material error in law in taking as his starting point a presumption in favour of disclosure which shifted the burden to University College Cork (UCC) to justify its refusal to disclose the information sought.

Facts

RTE made a request to UCC under the Freedom of Information Act 2014 seeking records relating to its financial arrangements with the European Investment Bank. UCC refused access on the basis that the information contained "commercially sensitive information" and came within the exemption set out in section 36 (1) (b) of the Act which states that a FOI head shall refuse a request if the record contains... "financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation". This exemption is also known as the "competitive advantage" exemption. This exemption is then subject to the separate statutory consideration of the public interest.

UCC said that the public interest arguments in favour of the release were outweighed by the arguments against release (i.e. that the grant of access would result in the company involved been commercially disadvantaged by the disclosure) and that in this case the public interest was better served by exemption of the records. RTE applied for an internal review of the decision. The FOI internal review board held that the information was " commercially sensitive" and that the section 36 "competitive advantage" exemption had been applied correctly. RTE exercised its right of review to the IC who held that UCC had not met the burden of proof required to show that it was justified in refusing access ordered the release of the documents. UCC subsequently appealed to the High Court.

Decision

Simons J found the IC made a number of material errors of law. Firstly, he said it was wrong to find a "presumption in favour of disclosure " as the starting point in RTE's appeal. The Judge relied on a recent Court of Appeal ruling in the Minister for Communications Energy and Natural Resources v Information Commissioner [2019] IECA 68 which said that where a record comes within the terms of one of the statutory exemptions, then no additional justification for non-disclosure is required to be demonstrated. Simons J found that notwithstanding that the information sought by RTE was "self-evidently commercially sensitive" the IC appears to have expected UCC to demonstrate additional justification for not disclosing the records. The court also found that there was an error of statutory interpretation in applying the "competitive advantage " test. There were 2 limbs to the test, the limbs were disjunctive and the threshold for each limb was also different. The second limb of the test used the wording "could prejudice" which has been held to be one of the lowest standards /thresholds prescribed under the freedom of information legislation. The IC failed to consider the second limb focusing almost exclusively on the first limb which imposed a higher standard of proof. Simons J found that the IC had misinterpreted the extent to which disclosing the records would put UCC at a competitive disadvantage and found in the university's favour. The IC must now consider RTE's request in line with the High Court's findings.

Commentary

The decision has raised concerns among civil liberties campaigners and other interested stakeholders that the future of the Freedom of Information Act may be in jeopardy as the presumption is no longer in favour of disclosure. There have been calls for the decision to be appealed. For the moment however the decision means that the Act may be interpreted more narrowly than originally intended by the legislature.

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